The first principle is that some mediators are better than others. The second principle is that some mediators are better for a given dispute than other equally good mediators. The third principle is that the selection of a mediator should be a thoughtful and strategic decision in each case.
Many lawyers have “their” mediator who they try to “sell” to the other side. Such a regular mediator is sometimes a professional colleague and friend or, is a retired judge. The choice of a friend is often subtlety motivated by a hope that the mediator might “tilt” slightly toward their client’s position. Sometimes a former-judge mediator is selected in the belief that such a mediator will “strong-arm” the opposition to accept one’s own position. But, while it makes good sense to use a mediator who has worked well in the past, I submit that spending a moment, up front, reflecting on the mediator selection considerations summarized below will enhance the likelihood of reaching a deal.
A. Is the mediator someone you feel comfortable working with?
I consider this question to be the single most important one to ask yourself. An ideal mediator is one that all parties feel comfortable with and do not feel is unduly pressuring them. He or she will relate well not only with counsel but also with the parties. People tend not to confide problems or insecurities to people to whom they do not relate well or do not trust. This analysis is even more vital when it is applied to the comfort level of the other side(s) of the case.
B. Does the mediator have a good reputation?
Asking colleagues that you trust as to their experiences with a given mediator, and others, is likely to give one a sense of the mediator’s reputation as an effective problem solver. There is a natural tendency to want to rule out a mediator who was unsuccessful in resolving your last case. It is appropriate, however, to analyze to what extent, if any, the failure to settle was the fault of the mediator. No ethical mediator is able to settle all of their cases and, thus, it is necessary to have a sense of that mediator’s “track record”. This is much easier to do with well established mediators.
C. Does the mediator understand and respect the role of the attorney in mediation?
Some mediators appear to view attorneys as part of the problem rather than part of the solution. This is particularly true of some non-attorney mediators. Mediators who are also attorneys can better appreciate the proper role of the attorney in mediation and to work with the attorneys through out the mediation process. A good mediator will contact counsel prior to the first mediation session and discuss the dispute, the interests, the issues and the personal relationships in the case. A good mediator will always encourage and allow a party to speak privately with their client. A good mediator will also ultimately respect counsel’s deliberate strategic decision not to disclose some item of evidence to the other side.
D. Will the mediator act in a totally impartial manner?
All mediators have personal opinions and particular professional backgrounds. The test is whether a mediator can act in a totally impartial way rather than whether he or she is philosophically neutral or has represented primarily plaintiffs or defendants. If your opponent or their counsel does not feel that the mediator is acting impartially they will most likely never agree to any deal presented by such mediator. Since the reality of a dispute may well require the mediator to spend more time with one side than with the other side, is important that counsel advise their clients that this is normal and not, in and of itself, a concern. This is particularly so when laughter can be heard coming from the other room. Parties who feel very strongly about the lack of any merit in the other side’s position should be counseled as to the duty of the mediator to treat that other side in a respectful and concerned manner.
E. Will the mediator preserve confidentiality?
One of the radical advantages of mediation is the ability to keep the dispute and/or dispute resolution process confidential. If your potential mediator has a reputation for bragging about the big and reasonably identifiable cases that he or she has settled, this is a strong negative. A good mediator is extremely careful not to reveal to the other side information that is considered to be confidential. No reputable mediator would ever convey information to a judge about a party or their attorney in connection with mediation. In the case of an unusually sensitive matter, an out of town mediator may make sense.
F. Is the mediator a “closer”?
While not the first question, this is a key question. No lawyer wants to pay a mediator to talk about reasonableness all day unless a deal is the likely result. Not every dispute can be settled but good mediators are known for their optimism, knowledge of human psychology and tenacity. In this respect working with a mediator you know and trust makes good sense. A really good mediator will generally ignore the first threat of a frustrated and fatigued attorney to head for his car. But good mediators understand that a deal that is not well thought out and freely entered into has a good chance of coming “unglued”. They also appreciate that there is no deal until the deal is written down and signed. This is why they resist counsels’ entreaties to get back to their office and work out the agreement tomorrow.
G. Can the mediator get to the real interests and needs of the parties?
The attorneys will have typically argued extensively, and unsuccessfully, over the legal issues in the case. The good mediator, however, is more interested in discovering the fundamental interests and “sticking points” of each party. This is generally the most difficult task for the mediator but it is often the key to resolution. Sometimes the parties themselves are not really clear on what their fundamental interest really are. Only patient and sensitive questioning of both attorney and client are able to elicit this.
H. Does the mediator work efficiently?
This is a quality that is difficult to ascertain given the normal slow pace of most mediations but the best mediators have a good sense for which issues and which persons to pursue first. A good mediator gathers information prior to the mediation session and has ascertained that all necessary parties will be present and have adequate authority to settle. Such a mediator has at least a tentative “plan of attack” and nudges the parties, and counsel, back onto following that plan. A good mediator, on the other hand, will call a break, before the parties collapse at the table.
I. Does the mediator use a good venue?
Mediation is normally difficult and somewhat stressful, especially for clients. It is thus significant that the mediator have a comfortable setting for the mediation session with ample ability to caucus privately with each party. A good mediator has snacks and beverages and has organized a lunch or dinner break for everyone. The comfort and informality of the mediation venue are not insignificant factors in motivating parties to keep negotiating.
J. Are the mediator’s fees reasonable for the value received?
Certainly, retaining the least expensive mediator would be foolish. On the other hand, the most expensive mediator may be “overkill” in a given case. Factors that might justify paying a larger fee for a mediator would include: substantial training and experience, substantial knowledge of the subject matter of the dispute, convenient local location, quality of the mediator’s facilities and prior successful work for the other side. Some mediators charge by the day but most charge by the hour. It is wise for counsel to ascertain, prior to retention, how the fee will be computed, what will be charged for and when payments are due. It is prudent to inquire about charges for travel time. In general, a highly skilled mediator is a worthwhile investment for any serious case.
Asking yourself these questions before you select your mediator will decrease mediator problems and increase the likelihood of achieving “the deal”.
Richard Morley Barron ©
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